In this photo taken June 11, 2015, a dry water ditch is seen next to a corn field in Cordova, Md. Landowners with small streams, tributaries and wetlands on their property face new Obama administration regulations starting Friday. The government says the new rules will help protect the nation’s waters from pollution and development and safeguard drinking water for 117 million Americans. Critics _ including many states, the agriculture industry and some business groups _ say they are federal overreach, would expand current law and could be a costly and confusing burden for landowners and farmers. As the rules kick in, those opponents are still pushing to stop them in the courts and Congress. (AP Photo/Alex Brandon)

Judge blocks Obama administration regulation on waterways

August 28, 2015

James Macpherson | The Associated Press

BISMARCK, N.D. — A federal judge in North Dakota on Thursday blocked a new Obama administration rule that would give the federal government jurisdiction over some smaller waterways just hours before it was set to go into effect.

U.S. District Judge Ralph Erickson in Fargo issued a temporary injunction against a the rule that would have given the U.S. Environmental Protection Agency and Army Corps of Engineers authority over some streams, tributaries and wetlands under the Clean Water Act. The rule was scheduled to take effect Friday.

“The risk of irreparable harm to the states is both imminent and likely,” Erickson said in granting the request of 13 states to temporarily stop the rule from taking effect. The judge said that among other things, the rule would require “jurisdictional studies” of every proposed natural gas, oil or water pipeline project in North Dakota, which is at the center of an energy exploration boom.

The 13 states led by North Dakota asked Erickson to suspend guidelines that they say are unnecessary and infringe on state sovereignty. The federal government says the new rule clarifies ambiguity in the law and actually makes it easier for the states to manage some waterways. It wasn’t immediately clear if the injunction applied to states other than the 13 that requested the injunction.

North Dakota Attorney General Wayne Stenehjem, who filed the request, said he was pleased by the ruling.

“This is a victory in the first skirmish, but it is only the first,” Stenehjem said in a statement. “There is much more to do to prevent this widely unpopular rule from ever taking effect.”

Stenehjem said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued. The EPA didn’t immediately comment.

The agriculture industry has been particularly concerned about the regulation, saying that it could apply to drainage ditches on farmland. The EPA and Army Corps said the only ditches that would be covered under the rule are those that look, act and function like tributaries and carry pollution downstream. A tributary would be regulated if it shows evidence of flowing water such as a bank or high water mark, the EPA says.

The other states involved in the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.

Erickson cited Wyoming in his ruling, saying the state would have to bear the cost of things such as issuing permits and has no way of avoiding the increased expenses under the regulation.

State officials in North Dakota said the new rule will cost the state millions of dollars and take away from more important programs. State Agriculture Commissioner Doug Goehring said there’s “confusion and anxiety” among farmers and other landowners over the initiative.

At the very least, state officials argued, more time was needed to study the rule, which was finalized on May 27.

Stenehjem — along with attorneys general and officials from 30 other states — wrote last month to the EPA and the Army Corps asking that the law be postponed at least nine months. Lawyers for the states said they heard nothing back from the government, so they filed a request for the preliminary injunction.

The federal government said the request for an injunction was better suited to be heard by the 6th U.S. Circuit Court of Appeals rather than a federal judge, but Erickson rejected that notion.

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